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Henry Friendly, Greatest Judge of His Era
Henry Friendly is frequently grouped with Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, and Learned Hand as the best American jurists of the twentieth century. In this first, comprehensive biography of Friendly, David M. Dorsen opens a unique window onto how a judge of this caliber thinks and decides cases, and how Friendly lived his life.During his time on the Court of Appeals for the Second Circuit (1959–1986), Judge Friendly was revered as a conservative who exemplified the tradition of judicial restraint. But he demonstrated remarkable creativity in circumventing precedent and formulating new rules in multiple areas of the law. Henry Friendly, Greatest Judge of His Era describes the inner workings of Friendly’s chambers and his craftsmanship in writing opinions. His articles on habeas corpus, the Fourth Amendment, self-incrimination, and the reach of the state are still cited by the Supreme Court.Dorsen draws on extensive research, employing private memoranda between the judges and interviews with all fifty-one of Friendly’s law clerks—a veritable Who’s Who that includes Chief Justice John R. Roberts, Jr., six other federal judges, and seventeen professors at Harvard, Yale, Stanford, and elsewhere. In his Foreword, Judge Richard Posner “David Dorsen has produced the most illuminating, the most useful, judicial biography that I have ever read . . . We learn more about the American judiciary at its best than we can learn from any other . . . Some of what I’ve learned has already induced me to make certain changes in my judicial practice.”
513 pages, Kindle Edition
First published March 27, 2012
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Displaying 1 - 7 of 7 reviews
July 20, 2019
Friendly is one of the great judges who never became a Supreme Court justice, along the lines of Learned Hand or Richard Posner. While he may not be a household name, his name is familiar to law students, lawyers and judges of all stripes and persuasions. The author of the biography interviewed many of Friendly's clerks, secretaries, and read through the cases that Friendly wrote.
Friendly himself was quite the character. He was probably a bit of a prodigy. Apparently he could read at the level of an adult as a child, had a photographic memory and achieved some of the highest grades at Harvard Law in history (though he considered becoming a historian first, only to be semi-cajoled by his parents into becoming a lawyer through the intervention of none other than Felix Frankfurter)[I take with some personal pleasure that he called Professor Beale the most boring of his professors]. He spent most of his life somewhat morosely, he didn't seem to take pleasure in his craft, which he saw as craftsmanship instead of artistry (which he admired more). He worried constantly about his eyesight, and never drove. He wrote his opinions apparently with ease and was influential in almost every area of law. The biography portrayals him as having difficulty emotionally connecting with others (including his children) but generous in spirit (he even stepped in once to recommend health treatment for a litigant on his own initiative) and emotionally sophisticated through his letters. He had a sense of fairness, even though he seemed intimidating to those who knew him. I really enjoyed reading the many stories told by his clerks of his idiosyncrasies. Chief Justice Roberts mentions that once Friendly asked him if the room was darker, not realizing that he simply forgot to remove his sunglasses. Apparently Roberts was so intimidated that he didn't mention the sunglasses to Friendly. Friendly noted to another that he never used any of Professor Ackerman's ideas, even though he had so many. Friendly seemed to only get close to his clerks after their tenure with him was over, and seemed fond of them, even of one clerk who quit before the year was up because he felt like he could not be a good clerk to Friendly. Overall, Friendly comes across as sometimes tough but fair, brilliant and accomplishing much despite an almost semi-depressive mood. Sadly, Friendly took his life at the end of his career, seemingly depressed by the death of his wife, and the fear of complete blindness.
Judicially, Friendly seemed like a moderate pragmatist (perhaps that's why he appeals to so many). He seemed to believe in the Legal Process School of thought, trying to fulfill the purpose of statutory enactments through crafting sensible rules. Generally, he seemed to stress sensible results, and praised Judge Traymor for flexible and reasonable decision making. Like all good lawyers, Friendly would distinguish precedent using facts (allowing him to reverse panel decisions without en banc) and could read dicta broadly or holdings narrowly to achieve what he saw were sensible results. Somewhat surprisingly, he would sometimes ignore the briefed arguments, deciding the case off of arguments he had thought of or uncovered through his research (sometimes this lead to mistakes, in one case he applied the Privileges and Immunities clause to corporations, when the clause only applies to natural persons). I guess you can do that, when you're as brilliant as Henry Friendly.
But beyond the sensible resolution of complex matters before him, Friendly is a name all lawyers recognize because how many areas of law he touched in enduring ways. Even as clerk for Brandeis, Friendly already influenced constitutional law by convincing Brandeis to argue that a wiretap was a search in his Olmstead dissent. Friendly was somewhat suspicious of the Warren court's revolution in criminal procedure, in particular that the court was issuing opinions not tied to constitutional text or tradition. He produced enduring ideas such as the requirement of actual innocence for habeas, a cost-benefit analysis for due process eventually adopted in Mathews, and predicted that the 6th right to counsel would shift to the filing of charges. He wanted to define state action narrowly, in order to avoid imposing constitutional burdens on all types of private organizations. He presided over important cases like the Pentagon Papers case. He was even involved behind the scenes in Bivens, assigning a former clerk to represent Bivens, leading to the Supreme Court case that affirmed a legal cause of action against federal agents for violations of the 4th amendment. Friendly wrote favorably of the Erie decision, which he believed cleared the way for federal courts to develop "real" federal common that would bind states on matters of national importance through the supremacy clause. Friendly practiced as a big law partner as well as the General Counsel of Pan Air, so it's not surprising that he went on to produce so many important cases in private law, that have been widely adopted and endured in areas as niche as intellectual property rights and admiralty (I would be remiss to fail to mention of course, the "chicken case" where Friendly defined what a "chicken" is). Friendly is even frequently cited in Supreme Court opinions today, a sign of the wide respect that his body of work still holds.
Personally, I really enjoyed the parts about Friendly's life. As I mentioned, he's a bit of a character, reminiscent of an old lovable grumpy grandpa. The meat of the book are the chapters devoted to Friendly's cases, broken down by subject. Friendly was on the bench for decades, so this method of organization made sense. I particularly enjoyed when a major case like Bivens showed up, and I learned much from the book. I have to admit however, that certain parts of the legal-ly chapters were hard to follow. Part of that problem probably doesn't lay with the author. The cases are complex, and sometimes turned on somewhat mundane technicalities (what? in the law?). The author sensibly tried to quote Friendly's language when possible (Friendly's opinions are broadly regarded as well written and clear) to give the reader a sense of Friendly's writing. But that combined with technical areas of law (which sometimes feel somewhat under-explained) can make some of the reading a bit of slog. It may as a result, be an especially challenging read for those without some training in the law. A challenging read for anyone, but worth the struggle to glimpse the brilliance of a great man.
Friendly himself was quite the character. He was probably a bit of a prodigy. Apparently he could read at the level of an adult as a child, had a photographic memory and achieved some of the highest grades at Harvard Law in history (though he considered becoming a historian first, only to be semi-cajoled by his parents into becoming a lawyer through the intervention of none other than Felix Frankfurter)[I take with some personal pleasure that he called Professor Beale the most boring of his professors]. He spent most of his life somewhat morosely, he didn't seem to take pleasure in his craft, which he saw as craftsmanship instead of artistry (which he admired more). He worried constantly about his eyesight, and never drove. He wrote his opinions apparently with ease and was influential in almost every area of law. The biography portrayals him as having difficulty emotionally connecting with others (including his children) but generous in spirit (he even stepped in once to recommend health treatment for a litigant on his own initiative) and emotionally sophisticated through his letters. He had a sense of fairness, even though he seemed intimidating to those who knew him. I really enjoyed reading the many stories told by his clerks of his idiosyncrasies. Chief Justice Roberts mentions that once Friendly asked him if the room was darker, not realizing that he simply forgot to remove his sunglasses. Apparently Roberts was so intimidated that he didn't mention the sunglasses to Friendly. Friendly noted to another that he never used any of Professor Ackerman's ideas, even though he had so many. Friendly seemed to only get close to his clerks after their tenure with him was over, and seemed fond of them, even of one clerk who quit before the year was up because he felt like he could not be a good clerk to Friendly. Overall, Friendly comes across as sometimes tough but fair, brilliant and accomplishing much despite an almost semi-depressive mood. Sadly, Friendly took his life at the end of his career, seemingly depressed by the death of his wife, and the fear of complete blindness.
Judicially, Friendly seemed like a moderate pragmatist (perhaps that's why he appeals to so many). He seemed to believe in the Legal Process School of thought, trying to fulfill the purpose of statutory enactments through crafting sensible rules. Generally, he seemed to stress sensible results, and praised Judge Traymor for flexible and reasonable decision making. Like all good lawyers, Friendly would distinguish precedent using facts (allowing him to reverse panel decisions without en banc) and could read dicta broadly or holdings narrowly to achieve what he saw were sensible results. Somewhat surprisingly, he would sometimes ignore the briefed arguments, deciding the case off of arguments he had thought of or uncovered through his research (sometimes this lead to mistakes, in one case he applied the Privileges and Immunities clause to corporations, when the clause only applies to natural persons). I guess you can do that, when you're as brilliant as Henry Friendly.
But beyond the sensible resolution of complex matters before him, Friendly is a name all lawyers recognize because how many areas of law he touched in enduring ways. Even as clerk for Brandeis, Friendly already influenced constitutional law by convincing Brandeis to argue that a wiretap was a search in his Olmstead dissent. Friendly was somewhat suspicious of the Warren court's revolution in criminal procedure, in particular that the court was issuing opinions not tied to constitutional text or tradition. He produced enduring ideas such as the requirement of actual innocence for habeas, a cost-benefit analysis for due process eventually adopted in Mathews, and predicted that the 6th right to counsel would shift to the filing of charges. He wanted to define state action narrowly, in order to avoid imposing constitutional burdens on all types of private organizations. He presided over important cases like the Pentagon Papers case. He was even involved behind the scenes in Bivens, assigning a former clerk to represent Bivens, leading to the Supreme Court case that affirmed a legal cause of action against federal agents for violations of the 4th amendment. Friendly wrote favorably of the Erie decision, which he believed cleared the way for federal courts to develop "real" federal common that would bind states on matters of national importance through the supremacy clause. Friendly practiced as a big law partner as well as the General Counsel of Pan Air, so it's not surprising that he went on to produce so many important cases in private law, that have been widely adopted and endured in areas as niche as intellectual property rights and admiralty (I would be remiss to fail to mention of course, the "chicken case" where Friendly defined what a "chicken" is). Friendly is even frequently cited in Supreme Court opinions today, a sign of the wide respect that his body of work still holds.
Personally, I really enjoyed the parts about Friendly's life. As I mentioned, he's a bit of a character, reminiscent of an old lovable grumpy grandpa. The meat of the book are the chapters devoted to Friendly's cases, broken down by subject. Friendly was on the bench for decades, so this method of organization made sense. I particularly enjoyed when a major case like Bivens showed up, and I learned much from the book. I have to admit however, that certain parts of the legal-ly chapters were hard to follow. Part of that problem probably doesn't lay with the author. The cases are complex, and sometimes turned on somewhat mundane technicalities (what? in the law?). The author sensibly tried to quote Friendly's language when possible (Friendly's opinions are broadly regarded as well written and clear) to give the reader a sense of Friendly's writing. But that combined with technical areas of law (which sometimes feel somewhat under-explained) can make some of the reading a bit of slog. It may as a result, be an especially challenging read for those without some training in the law. A challenging read for anyone, but worth the struggle to glimpse the brilliance of a great man.
July 21, 2019
The biographical parts were pretty good.
With regard to the case analysis, it seems pretty clear that David Dorsen is smarter than Judge Friendly and Judge Friendly got a whole mess of things wrong. That is, from this biography it's hard to tell why people respected Friendly so much. I'd imagine he needs more than speedy and intensity but that's all Dorsen really seems to show us in his favor.
With regard to the case analysis, it seems pretty clear that David Dorsen is smarter than Judge Friendly and Judge Friendly got a whole mess of things wrong. That is, from this biography it's hard to tell why people respected Friendly so much. I'd imagine he needs more than speedy and intensity but that's all Dorsen really seems to show us in his favor.
January 8, 2015
Posner's right: this is a fine "doctrinal biography," proceeding area by area, of a boring, brilliant, and thoroughly unpleasant man who was likely the finest and hardest-working jurist of the late 20th century.
June 20, 2016
In the Forward to David Dorsen's Henry Friendly, Greatest Judge of His Era, Judge Richard Posner opines that, while he generally is no fan of judicial biographies (paraphrasing, as I have already returned my copy of this book to the library), Dorsen's work is a rare exception, "the most illuminating, the most useful, judicial biography that [he has] ever read." I am of two minds on the matter.
On the one hand, there is no question that Dorsen's biography is a superb work. The material is extensively researched, clearly and accessibly written, effectively presented, and quite informative. Dorsen spends the early chapters detailing Judge Friendly's family history, early life, studies, and pre-judicial career, before diving into analysis of the judicial output (divided by subject matter, rather than chronologically). The reader is given a full and fair view of Friendly, both as a man and as a judge, that reveals both his brilliance and his inadequacies. One cannot read this book and not come away with a deep understanding of who Judge Friendly was and his impact on a broad range of legal matters.
On the other hand, however, this book will only appeal to a very niche readership. Judge Friendly's life was, frankly, not particularly interesting. He was smart and went to law school. He was often a cold, reserved person, but warm to others, particularly when he was in his comfort zone. He worked too much and had strained relationships with his children, but for one, to whom he was quite close. All common, human problems to be sure, but hardly the stuff of drama. That is, of course, to be expected from most judicial biographies whose subject is not named "Marshall" (John or Thurgood). Moreover, the New York legal scene circa 1930-1950, the development of various areas of law within the Second Circuit, PanAm's legal issues during the Truman and Eisenhower administrations...yeah, that's what you're getting here.
If the subject matter appeals to you (and if you're reading these review, I guess you are at least curious), I recommend this book. To the broader reading population, however, I expect it will be quite boring.
On the one hand, there is no question that Dorsen's biography is a superb work. The material is extensively researched, clearly and accessibly written, effectively presented, and quite informative. Dorsen spends the early chapters detailing Judge Friendly's family history, early life, studies, and pre-judicial career, before diving into analysis of the judicial output (divided by subject matter, rather than chronologically). The reader is given a full and fair view of Friendly, both as a man and as a judge, that reveals both his brilliance and his inadequacies. One cannot read this book and not come away with a deep understanding of who Judge Friendly was and his impact on a broad range of legal matters.
On the other hand, however, this book will only appeal to a very niche readership. Judge Friendly's life was, frankly, not particularly interesting. He was smart and went to law school. He was often a cold, reserved person, but warm to others, particularly when he was in his comfort zone. He worked too much and had strained relationships with his children, but for one, to whom he was quite close. All common, human problems to be sure, but hardly the stuff of drama. That is, of course, to be expected from most judicial biographies whose subject is not named "Marshall" (John or Thurgood). Moreover, the New York legal scene circa 1930-1950, the development of various areas of law within the Second Circuit, PanAm's legal issues during the Truman and Eisenhower administrations...yeah, that's what you're getting here.
If the subject matter appeals to you (and if you're reading these review, I guess you are at least curious), I recommend this book. To the broader reading population, however, I expect it will be quite boring.
May 17, 2012
A fine and thoughtful biography, though incredibly dull. The first half is devoted to Friendly's life and career; the second half serves as a compendium of important cases that he decided, organized by case type.
There is very little drama in the book. It is more a reference work than a biography.
There was a nice little quote from Friendly, while at Harvard Law School in a class on corporate law, that applies today:
"We concluded that in general a corporation could not marry---but there might be circumstances."
There is very little drama in the book. It is more a reference work than a biography.
There was a nice little quote from Friendly, while at Harvard Law School in a class on corporate law, that applies today:
"We concluded that in general a corporation could not marry---but there might be circumstances."
November 11, 2014
Good for browsing. Too many chapters read like a legal memo.
April 13, 2016
Excellent biography of Judge Henry Friendly, considered one of the greatest lower court judges in recent times.
Displaying 1 - 7 of 7 reviews